The State Board of Vocational, Technical andAdult Education may by rule require that therecord concerning appointment of districtboard members show compliance with statutoryprocedural requirements, and the state boardmay disapprove appointments because ofprocedural irregularities except thoseinvolving the Open Meetings Law.

Also, appointment by the appointmentcommittee and approval by the state boardis required to move a previously approvedcandidate from one membership category toanother.

ROBERT P. SORENSEN, PH.D., State DirectorBoard of Vocational, Technical and AdultEducation

You have asked a number of questions relatingto the appointment of persons to a districtvocational, technical and adult educationboard (district board).

Several sections of chapter 38 of theWisconsin statutes are involved, as well aschapter A-V 2 of the Wisconsin AdministrativeCode, all of which provide for thecomposition of a district board and theappointment of district board members.

With respect to the composition of a districtboard, section 38.08(1), Stats., provides:

38.08(1)(a)1.

A district board shall administer thedistrict and shall be composed of 9 memberswho are residents of the district, includingthree employers who have power to employ anddischarge, three employes who do not havepower to employ or discharge, two additionalmembers and a school district administrator.

38.08(1)(a)2.

The employer and employe members of thedistrict board shall be representativeof the various businesses andindustries in the district.

The school district administrator shall beemployed by the school board of a schooldistrict located in the district.

At least two of the members of the districtboard shall be elected officials of a countyboard of supervisors, common council, villageboard of trustees, town board of supervisorsor school board, but no two members of thedistrict board may be officials of the samegovernmental unit nor may any district boardmember be a member of the school board thatemploys the school district administratormember.

With respect to the appointment of members toa district board, section 38.10 provides:

38.10(1)

District board members shall be appointed byan appointment committee consisting of schoolboard presidents of school districts, orcounty board chairmen of counties, havingterritory within the district . . . . .

38.10(2)(a)1. . . . . .

38.10(2)(a)2.

The chairperson of the appointment committeeshall fix a date . . . no later than 60 daysafter receipt of notification of the vacancyor term expiration, and a time and place fora public hearing and meeting of theappointment committee to approve arepresentation plan and to appointdistrict board members . . . . . .

38.10(2)(c)

At the meeting and prior to the appointmentof district board members, the appointmentcommittee shall formulate a plan ofrepresentation for the membershipof the district board.

The plan shall give equal consideration tothe general population distribution withinthe district and the distribution of womenand minorities within the district.

The plan shall form the basis upon whichmembership of the district board isdetermined . . . . . .

38.10(2)(d)1.

Upon receiving notice of the vacancy or termexpiration . . . and at least 14 days beforepublication of the notice required undersubdivision 38.10(3), the appointmentcommittee shall publish a notice announcingthe intent to appoint district board members,including the criteria for selection, andsoliciting the submission of names andqualifications of candidates.

38.10(2)(d)2.

In order to be eligible for considerationfor appointment to the district board, acandidate shall submit his or her name andqualifications to the appointment committeewithin 14 days of the date of publication ofthe notice under subdivision 38.10(2)(d)1.

Notwithstanding Section 19.84(3), theappointment committee shall publish a noticeof any meeting or public hearing at which theappointment committee will consider thefilling of any vacancy on the district boardor any other matter pertaining to theappointment of district board membersat least 14 days before the meetingor public hearing.

The subject matter of the meeting or publichearing as specified in the notice shallcontain the names of individuals beingconsidered for appointment.

Prior to the meeting at which an appointmentis made, the appointment committee shall holda public hearing at which the names andqualifications of individuals beingconsidered for appointment to the districtboard shall be discussed.

No person may be appointed to a districtboard by an appointment committee unless hisor her name appeared in at least one noticeof a public hearing or meeting of thecommittee. . . . . . . .

38.10(2)(f)

Selection of district board members andapproval of a representation plan by theappointment committee shall be by majorityvote of a quorum
. . . . . .

Section 38.10(2)(c) empowers the State Boardof Vocational, Technical and Adult Education(state board) to "require that district boardappointments comply with the provisions ofthe plan of representation."

If an appointment committee cannot reachagreement on a plan of representation orappointment of district board members withinthirty days after the committee's firstmeeting, the state board is required bysection 38.10(2)(f) to

formulate the plan of representation
and appoint district board members in accordance with the plan.

Finally, section 38.04(15), provides that the

state board shall, by rule, establish criteria and procedures for the review of the district board member appointments by the state board.

Pursuant to this grant of rule-makingauthority, the state board haspromulgated chapter A-V 2 of theWisconsin Administrative Code.

Section A-V 2.04 (1)-(3) requires appointmentcommittees to submit a plan ofrepresentation, an affidavit of eachcandidate containing vital information(including the candidate's status as anemployer or employe), and a statementexplaining how employer and employe membersare representative of businesses andindustries in the district.

Section A-V 2.04(4) enumerates the standardswhich the state board applies when reviewinga plan of representation and proposedappointments of district board members.

With the foregoing background regarding thestatutory authority of the state board andthe administrative rules concerning review ofdistrict board member appointments by thestate board in mind, I will address the firstof your questions which states:

1. When allegations of procedural irregularities on the part of the local appointment committee are made to the state board, and where the record supports the appointments as made by
the appointment committee, does the state board have the authority to inquire beyond the evidence submitted to it under Section A-V 2.04(3)(a) to A-V 2.04(3)(c), WI Section Adm. Code, when a complaint is received from a citizen of that VTAE district?

The answer to this question is no.

The decision made by the board mustbe made on the record as definedby section A-V 2.04(1)-(3).

Although the state board informally requiresappointment committees to submit notices,minutes and other documents dealing with theprocedure followed by the committees, therules of the state board do not presentlyrequire that the record submitted to thestate board show compliance with theprocedural requirements of sections38.08 and 38.10.

In my opinion, in order for the state boardto inquire into alleged proceduralirregularities by appointment committees,the state board must promulgate a rulerequiring that the record show compliancewith the procedural requirements of thestatute Section This is because section38.04(15)provides that the state board"shall, by rule, establish criteria andprocedures for the review of the districtboard member appointments."

Your second question states:

2. Can the state board reject an appointment based upon a procedural impropriety, e.g., a defective notice at the local level, a violation of
the Open Meeting Law, a defective affidavit, etc., or can it only reject an appointment because the appointment
on its face based upon evidence and the record submitted to the state board
by the appointment committee, does not comply with the provisions of
the plan of representation?

require that district board appointments comply with the provisions of the plan of representation,"

it is my opinion that the grant ofrule-making authority contained insection 38.04(15), which authorizesthe state board to

establish criteria and procedures for the review of district board member appointments,"

is broad enough to authorize the stateboard to disapprove an appointment based upona procedural impropriety.

As noted in response to your first question,however, the board first must promulgate arule requiring that the record showcompliance with the proceduralrequirements of the statutes.

The state board may disapprove appointmentsbased upon procedural irregularitiesincluding, but not limited to, failure of anappointment committee to formulate a plan ofrepresentation, failure to publish timelynotice of intent to appoint district boardmembers, failure to publish criteria forselection, and failure to hold a publichearing prior to making an appointment.

The state board, however, may not disapproveappointments based upon a violation of theOpen Meeting Law, Sections 19.81-19.98,because courts have exclusive authorityto weigh the various public interestsinvolved and to void any committee actionwhich violates the law.

Section 19.97(3), Stats.

Your third question states:

3. Can the state board establish administrative rules allowing it to disapprove appointments based upon procedural improprieties?

For the reasons stated in response to yourfirst question, the answer to your thirdquestion is yes.

Your fourth question states:

4. If the state board does not have the authority to disapprove an appointment based upon a procedural defect, then who can challenge this kind of defect when it occurs at the local appointment committee?

The answer to this question is two-fold.

First, as noted in response to your secondquestion, except as to violations of the OpenMeetings Law, the state board does haveauthority to disapprove an appointment basedupon a procedural defect, provided that thestate board promulgates a rule requiring thatthe record show compliance with theprocedural requirements of the statuteSection With respect to alleged violations ofthe Open Meetings Law, challenges may be madein a court action brought by the AttorneyGeneral, the district attorney or, if thedistrict attorney refuses to commence anaction, by any person who files a verifiedcomplaint with the district attorney.

5. Can an appointment committee shift a candidate, previously approved in a specific category to a different category prior to the effective date
of that candidate's term of office, without first removing that candidate from office and then appointing that candidate to a new category and without seeking new state board approval?

The answer to this question is no.

Section 38.08(10)(a)1. requires that districtboards consist of three employers, threeemployes, two elected officials anda school district administrator.

A candidate previously appointed by thecommittee and approved by the state boardin one category cannot be "shifted" to adifferent category unless the candidate isformally appointed by the appointmentcommittee and formally approved by the stateboard in the different category pursuant tosection 38.10 and the related administrativerule sections.

Appointment and approval are unnecessary,however, with respect to elected officialmembers who move from one qualified publicoffice to another.

I cannot comment more specifically on theauthority of an appointment committee orthe state board to adjust district boardmembership in order to achieve the requiredbalance between employer and employe members,because such matter presently is inlitigation and because it is the policy ofthe Department of Justice not to render anopinion with respect to matters inlitigation.